That Defense Isn't Special. Or, for that Matter, a Defense.

Tracy v. City of Pico Rivera, No. B258563 (D2d2 Sept. 15, 2015)

A contractor can’t recover its fees in a payment dispute if it isn’t validly licensed. Defendant contested the validity of Plaintiff’s license. It convinced the court to hold a bifurcate the license issue and try it first without a jury as a special defense not going to the merits under Code of Civil Procedure § 597.

Problem is, in a contractor case, lack of a license isn’t a defense, special or otherwise. Being licensed is an affirmative element of Plaintiff’s claim. A claim under which Plaintiff had a jury trial right. So when the trial court relied upon § 597 to hold an advance bench trial on the licensure issue, it deprived Plaintiff of a jury finding on the issue. That was reversible error.

Reversed.